Government Contractor Compliance & Regulatory Update

Department Of Labor Challenges ALJ’s Decision On Google’s Obligation To Respond To OFCCP Data Requests

In July, we reported that an Administrative Law Judge (“ALJ”) had ruled on OFCCP’s dispute with Google over the tech giant’s refusal to turn over certain documents in connection with a routine audit of Google’s headquarters. In his Recommended Decision and Order, the ALJ narrowed the scope of what OFCCP could request from Google without identifying additional justification for the information requested. Our prior post on the decision can be found here.

On August 23, 2017, the Department of Labor (“DOL”) filed an appeal  of the ALJ’s decision with the Administrative Review Board (“ARB”). In its filing, the DOL contends that the ALJ failed to “apply the proper Fourth Amendment standard,” and that Google should be ordered to “fully comply with [the] OFCCP’s information requests, which include: employee-level compensation data from 2014, full salary and job history information for those employees listed in the 2014 dataset, and names and contact information for employees listed in the compensation data request.”

The DOL’s arguments reflect an effort to maximize its ability to obtain information from government contractors during compliance audits. In essence, the DOL contends that the ALJ applied too high of a relevance standard in assessing the reasonableness of OFCCP’s requests, and too low of a burden standard when balancing the government’s need for information with the hardship its demands would place on the government contractor. The DOL argues that when the proper standards are applied, all of the information sought by OFCCP from Google should be produced.

Google will have a chance to respond to the arguments made by the DOL prior to a ruling by the ARB. We will continue to report on this case as developments warrant.

Trump Administration Signals Delay in Merger of EEOC and OFCCP

As we previously reported, President Trump, as part of his Fiscal Year 2018 Budget request, proposed a merger of the Office of Federal Contractor Compliance Programs (“OFCCP”) and the Equal Employment Opportunity Commission (“EEOC”) to “promote greater efficiency and effectiveness.”  In an August 24, 2017 letter, Acting Director of the OFCCP, Thomas Dowd, signaled a delay in the proposed merger.

In his letter to The Institute for Workplace Equality – a group opposed to the merger – Acting Director Dowd informed the group that its concerns were being considered by the OFCCP and the Trump Administration. But he also shared “that the consolidation proposal includes several challenging transition issues” which “could delay” the merger.

He explained that such a merger would require congressional amendments to the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”) and Section 503 of the Rehabilitation Act, laws which govern government contractor obligations relating to individuals with disabilities and veterans. Even with such amendments, Acting Director Dowd noted there would also need to be rulemaking to implement the statutory changes.  In addition, any merger would need to address “different enforcement structures and approaches used by the two agencies.”  Acting Director Dowd noted as one example that the EEOC’s judicially-focused enforcement structure and the OFCCP’s administratively-focused enforcement structure would need to be “bridg[ed].”

Based on these challenges, Acting Director Dowd shared that all of these difficulties “could delay the expected [Fiscal Year] 2019 start for the proposed consolidation, which would result in a concomitant delay in the realization of intended benefits.”

While Acting Director Dowd noted that the merger may be delayed, he emphasized the ability of the two agencies to increase efficiency in the interim through, for example, the existing Memorandum of Understanding between the two agencies. Thus, we may see internal modifications in the near term by the two agencies to “identify operational cost savings by eliminating existing redundancies.”

We will continue to monitor developments on this topic.

BREAKING NEWS: New EEO-1 Form Put On Hold; Employers Have Until March 31, 2018 To Submit Prior Version Of EEO-1 Form

The Office of Management and Budget (“OMB”) has stayed the implementation of the new EEO-1 Form, which added compensation and hours worked components to the annual EEO-1 submission. The OMB’s decision was based in part on concerns about burdens the new form would place on employers and the questionable utility of the new information requirements. Employers who must submit the EEO-1 form will have to submit the prior version of the EEO-1 Form, but will not have to submit 2017 data until March 31, 2018. Read the full summary of the development and key takeaways on Law and the Workplace.

OFCCP Announces “Compliance Assistance” Town Hall Meetings

On August 16, 2017, OFCCP announced that, as part of its efforts to provide compliance assistance to federal contractors, it will be holding three town hall meetings. The meetings will be open to the public and held in Washington D.C., San Francisco, CA, and Chicago, IL.

OFCCP explains that during the meetings, it wants “to obtain your views and learn more about the experiences of federal contractors when implementing and managing their nondiscrimination and equal employment opportunity requirements, and how we can help.”

The dates, times and registration links to the town halls are detailed below:

  1. Date: September 19, 2017 Time: 8:30 AM to 1:00 PM City Location: Washington, DC Registration Link: https://www.eventbrite.com/e/ofccp-compliance-assistance-town-hall-registration-35797146228
  2. Date: September 26, 2017 Time: 8:30 AM to 1:00 PM City Location: San Francisco, California Registration Link:https://www.eventbrite.com/e/ofccp-compliance-assistance-town-hall-registration-36208818551
  3. Date: September 28, 2017 Time: 8:30 AM to 1:00 PM City Location: Chicago, Illinois Registration Link:https://www.eventbrite.com/e/ofccp-compliance-assistance-town-hall-registration-36209277925

U.S. House Committee on Appropriations Votes to Defund Revised Form EEO-1 Requiring Disclosure of Pay Data

On July 13, 2017, the House Committee on Appropriations voted to defund efforts to implement the Equal Employment Opportunity Commission’s (“EEOC”) revised Form EEO-1.  If the Appropriations Bill is ultimately passed, it will severely limit the EEOC’s ability to implement its revised EEO-1. Continue Reading

Google Prevails, In Part (And For Now), In Compensation Data Dispute With OFCCP

On July 14, 2017, an Administrative Law Judge (“ALJ”) for the Department of Labor issued a Recommended Decision and Order (the “Opinion”) in the case brought by the Office of Federal Contractor Compliance Programs (“OFCCP”) against Google over Google’s refusal to turn over certain employee data as part of a compliance audit.  The ALJ’s thorough opinion is informative, providing insights into OFCCP’s processes in compliance audits, basic canons of administrative and constitutional law, as well as the administrative proceedings that have garnered so much of the government contractor community’s attention. Continue Reading

Contractors with Access to Classified Information Now Subject to Heightened Reporting Requirements

Effective June 12, 2017, executive branch agency employees, contractors and subcontractors who have access to classified information or hold sensitive positions must report personal trips abroad as well as a wide range of foreign contacts. This new security directive, “Reporting Requirements for Personnel With Access to Classified Information or Who Hold a Sensitive Position,” was issued by the Office of the Director of National Intelligence and establishes fundamental reporting requirements while still allowing agency heads to impose additional reporting requirements in accordance with their respective authorities. Continue Reading

Labor Secretary Defends OFCCP-EEOC Merger

As previously reported, the Trump Administration’s proposed budget for fiscal year 2018 includes a plan to merge the Office of Federal Contract Compliance Programs (“OFCCP”) into the Equal Employment Opportunity Commission (“EEOC”). Pragmatically, this would add the OFCCP’s broad responsibilities to an already overburdened EEOC, without providing the EEOC any additional funding to accomplish its newly added workload.

On June 7, 2017, Labor Secretary Alexander Acosta testified at a House Appropriations subcommittee hearing in support of the proposal. The Labor Secretary touted the merger as a “commonsense change” that “combines two civil rights agencies that already work together closely.”  The merger, according to Secretary Acosta would achieve a cost saving without reducing enforcement. Continue Reading

Trump Administration’s Budget Proposes Major Changes For OFCCP

On May 23, 2017, the Trump Administration released its proposed fiscal year 2018 budget. Not surprisingly, the budget proposes significant changes for the Office of Federal Contract Compliance Programs (“OFCCP”).  In the Department of Labor’s budget proposal, the Administration has laid the groundwork to merge the OFCCP into the Equal Employment Opportunity Commission (“EEOC”) by the end of fiscal year 2018.  The merger is touted as intended to promote “greater policy coordination, management efficiency, and cost-effectiveness.”  According to the Administration, maintaining OFCCP as a separate agency “does not take full advantage of the opportunities to improve employment civil rights protection.”  It is worth noting that although the merger is the focal point of the OFCCP budget proposal, it appears to have little support outside of the Administration. Indeed, opposition to the proposal is shared by both business groups and workers’ rights advocates. Continue Reading

OFCCP Announces New Veteran Hiring Benchmark

The OFCCP has announced its 2017 Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) Benchmark. The new benchmark is 6.7%, slightly lower than the previous year’s 6.9% benchmark.

The VEVRAA Benchmark is the figure which federal contractors must use to assess the effectiveness of their outreach programs for the hiring of veterans. Contractors may either use the OFCCP’s national benchmark, or establish their own benchmark using applicable statistics and other metrics set forth in OFCCP’s regulations (41 CFR §60-300.45(b)(2)).

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